Moments of success in the pursuit of social justice and a better society are often motivated by the bravery, commitment, and ethical vision of particular individuals or institutions. The advancement of equality requires this kind of leadership.
In the 1990s, the British Columbia College of Teachers expended the energy, money, and political capital required to resist a policy of discrimination against gays and lesbians perpetuated by Trinity Western University's community covenant. To attend TWU's teacher education program students had to promise not to engage in "homosexual behavior". While the Supreme Court of Canada ultimately permitted freedom of religion to trump equality for gays and lesbians in the B.C. College of Teachers case, it did agree with the college that this covenant creates "unfavourable differential treatment" towards gays and lesbians.
The legal status of gays and lesbians in Canada has improved. Striking the appropriate balance between freedom of religion and equality for gays and lesbians today requires greater recognition of gays and lesbians than it did fifteen years ago. Freedom of religion would not trump these equality interests as easily as it did when the College of Teachers case was decided.
Last year, Trinity Western applied to the B.C. government and to the law societies across Canada for approval to open a new law school. Trinity Western still requires all of its faculty, staff and students to sign an agreement promising not to engage in "sexual intimacy that violates the sacredness of marriage between a man and a woman." In support of this covenant Trinity Western cites biblical passages condemning homosexuality. Students who violate the covenant face disciplinary measures including expulsion.
On Monday, the Federation of Law Societies of Canada released a decision recommending preliminary approval of Trinity Western's proposed new law school.
This decision is disappointing. Contrasted with the release Tuesday of the CBA's access to justice report, the Federation of Law Societies' recommendation represents a refusal to act in the interests of equality and justice. As lawyers, we lack the courage of the B.C. College of Teachers more than 10 years ago.
TWU's law school proposal has been controversial. To be clear, TWU's covenant differentiates on the basis of sexual orientation. Despite attempts by those supportive of TWU to muddy the waters by suggesting that gay people are welcome at the university so long as they don't have sex, the restrictions on gays and lesbians found in TWU's covenant are discriminatory and have been characterized as such by the Supreme Court of Canada. It is disingenuous to suggest, as have some TWU supporters, that a meaningful distinction can be drawn between forbidding same-sex intimacy and excluding gays and lesbians. This love the sinner, hate the sin logic was explicitly rejected by the Supreme Court last year.
The decision to accept TWU's law school ultimately rests with each provincial law society. In other words, each law society will be responsible for the decision to approve TWU's proposed law school – a school that would, were it situated in provinces such as Ontario, Nova Scotia, Saskatchewan and Alberta, violate students' human rights code protections.
The question that each law society in Canada must answer is the following: Is it in the public interest for the profession of law to approve an educational institution with policies that discriminate against gays and lesbians?
This is an important moment in Canadian legal history and for the pursuit of justice. Will the law societies embrace their commitment to the principles of equality, as did the B.C. College of Teachers?
Elaine Craig is an assistant professor at Schulich School of Law, Dalhousie University. She teaches and researches in the areas of constitutional law and criminal law. She is the author of The Case for the Federation of Law Societies Rejecting Trinity Western University's Proposed Law Degree Program.